Citation NR: 9635187
Decision Date: 12/10/96 Archive Date: 12/19/96
DOCKET NO. 94-39 127 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Los
Angeles, California
THE ISSUES
1. Entitlement to service connection for an eye disorder,
including refractive error, and a recurrent conjunctival
ulcer of the right eye.
2. Entitlement to service connection for bilateral defective
hearing.
3. Entitlement to a compensable rating for the postoperative
residuals of a gastrectomy.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
Stephen F. Sylvester, Counsel
INTRODUCTION
The veteran served on active duty from August 1968 to
February 1990.
This matter is before the Board of Veterans' Appeals (Board),
on appeal from a from rating decision of March 1992 from the
Los Angeles, California, Department of Veterans' Affairs (VA)
Regional Office (RO), granting service connection for
postoperative residuals of a gastrectomy, but denying service
connection for degenerative arthritis of the right shoulder,
an eye disorder including refractive error and a recurrent
conjunctival ulcer of the right eye, bilateral defective
hearing, a right arm injury and postoperative residuals of a
pilonidal cystectomy. The RO notified the veteran of these
determinations by letter dated April 8, 1992. The veteran
filed a Notice of Disagreement in June 1992. In March 1993,
the RO issued the veteran a Statement of the Case. The
veteran filed a Substantive Appeal in April 1993, in which he
specifically appealed the issues of service connection for an
eye disorder, bilateral defective hearing (ear infection) and
a right arm injury (ruptured biceps).
Pursuant to 38 U.S.C.A. § 7105(a), a request for appellate
review by the Board of a decision by the RO is initiated by a
Notice of Disagreement and completed by a Substantive Appeal
after a Statement of the Case has been furnished. 38 C.F.R.
§ 20.200 (1995). A Substantive Appeal consists of a properly
completed VA Form 9, "Appeal to Board of Veterans' Appeals,"
or correspondence containing the necessary information.
Where the Statement of the Case addressed several issues, the
Substantive Appeal must either indicate that the appeal is
being perfected as to all of those issues or must
specifically identify the issues appealed. Proper completion
and filing of a Substantive Appeal are the last actions the
appellant needs to take to perfect an appeal. 38 U.S.C.A.
§ 7105(a); 38 C.F.R. § 20.202 (1995). In this case, the
veteran specifically identified the issues for which he
intended to continue his appeal. The veteran did not include
the issues of service
connection for degenerative arthritis of the right shoulder
and postoperative residuals of a pilonidal cystectomy.
The veteran’s representative includes these as issues
appealed to the Board in the July 1994 informal statement. A
Substantive Appeal must be filed within 60 days from the date
that the RO mails the Statement of the Case to the appellant,
or within the remainder of the 1-year period from the date of
mailing of the notification of the determination being
appealed, whichever period ends later. The date of mailing
of the Statement of the Case will be presumed to be the same
as the date of the Statement of the Case and the date of
mailing the letter of notification of the determination will
be presumed to be the same as the date of that letter for
purposes of determining whether an appeal has been timely
filed. 38 U.S.C.A. § 7105(b)(1); 38 C.F.R. § 20.302(b)
(1995). The veteran did not perfect his appeal with respect
to the issues of service connection for degenerative
arthritis of the right shoulder and postoperative residuals
of a pilonidal cystectomy. 38 U.S.C.A. § 7105; 38 C.F.R.
§§ 20.200, 20.302(b).
In December 1993, the RO granted service connection for
residuals of a ruptured long head of the right biceps, and
assigned a 10 percent evaluation, effective February 2, 1990.
In April 1993 Substantive Appeal, the veteran argued in favor
of service connection and requested that “a 10 [percent]
disability be considered for this problem.” The veteran did
not express disagreement with that determination. The
veteran’s representative did not include this issue or
express disagreement with that determination in the July 1994
informal statement.
In the Substantive Appeal, the veteran raises the issue of
entitlement to service connection for a chronic ear
infection. The veteran does not specify which ear is
affected by recurrent ear infections. This issue has not
been developed or certified for appellate review and it is
referred to the RO for clarification and appropriate action.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran argues that the RO committed error in denying
entitlement to service connection for a chronic eye disorder
because this disability had its origin during his period of
active military service. Specifically, the veteran argues
that while doing the lawns in preparation for an inspection,
a blade of grass became embedded in the veteran’s eye. He
maintains that chemicals used on the grass caused an
infection, which although treated at that time, required
eventual treatment with laser surgery. According to the
veteran, his eye has since formed a crater which fills with
calcium, requiring treatment in order to remove the calcific
deposits. The veteran argues that he finds it necessary to
utilize artificial tears in order to relieve his eye
irritation. The veteran maintains that he had treatment for
hearing problems during service and he has had chronic
hearing problems since that time. Finally, the veteran
argues that the various manifestations of his service-
connected post gastrectomy syndrome are more severe than
currently evaluated, and productive of a greater degree of
impairment than is reflected by the noncompensable schedular
evaluation presently assigned. He asserts that, as a result
of the service-connected post gastrectomy, he suffers from an
inability to gain weight, and must be cautious of food
consumption. He claims his stomach makes loud sounds after
eating and argues that an increased rating is warranted based
on the uncertainty of future complications.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991), has reviewed and considered all of the
evidence and material of record in the veteran’s claims file.
Based on its review of the relevant evidence in this matter,
and for the following reasons and bases, it is the decision
of the Board that the veteran has not submitted well-grounded
claims for service connection for an eye disorder including
refractive error and a recurrent conjunctival ulcer of the
right eye, and bilateral defective hearing. It is also the
decision of the Board that a preponderance of the evidence is
against the claim for a compensable rating for the
postoperative residuals of a gastrectomy.
FINDINGS OF FACT
1. The veteran has not presented competent medical evidence
demonstrating inservice conjunctival ulcer of the right eye,
or post-service medical evidence relating current right eye
pathology to any incident or event of active service.
2. Refractive error is not a disease or injury within the
meaning of legislation governing the award of compensation
benefits.
3. The veteran has not submitted competent medical evidence
showing a current hearing loss disability within the meaning
of legislation governing the award of compensation benefits.
4. The persuasive evidence demonstrates that the service-
connected postoperative gastrectomy is essentially
asymptomatic and is currently less than mild in severity,
with less than infrequent episodes of epigastric distress and
characteristic mild circulatory symptoms, or continuous mild
manifestations; the post-operative scar is superficial and
not tender and painful on objective demonstration.
CONCLUSIONS OF LAW
1. The claim for service connection for a chronic eye
disorder is not well grounded. 38 U.S.C.A. §§1110, 1131,
5107(a) (West 1991); 38 C.F.R. § 3.303(c) (1995).
2. The claim for service connection for bilateral defective
hearing is not well grounded. 38 U.S.C.A. §§ 1110, 1131,
5107(a); 38 C.F.R. § 3.385 (1995).
3. The criteria for a compensable rating for the
postoperative residuals of a gastrectomy, including a scar,
is not warranted. 38 U.S.C.A. § 1155, 5107 (West 1991);
38 C.F.R. §§ 4.1, 4.2, 4.7, 4.31, 4.112, 4.114, 4.118,
Diagnostic Codes 7308, 7804 (1995).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
In order to establish service connection for a claimed
disability the facts must demonstrate that a disease or
injury resulting in current disability was incurred in the
active military service or, if pre-existing active service,
was aggravated therein. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R.
§ 3.303. Where a veteran served continuously for ninety
(90) days or more during a period of war, or during peacetime
service after December 31, 1946, and an organic disease of
the nervous system, including sensorineural hearing loss,
becomes manifest to a degree of 10 percent within one year
from date of termination of such service, such disease shall
be presumed to have been incurred in service, even though
there is no evidence of such disease during the period of
service. This presumption is rebuttable by affirmative
evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113,
1137; 38 C.F.R. §§ 3.307, 3.309. Service connection may also
be granted for a disease diagnosed after discharge, when all
the evidence, including that pertinent to service,
establishes that the disease was incurred in service.
38 C.F.R. § 3.303(d).
Pursuant to 38 U.S.C.A. § 5107(a), a person who submits a
claim for benefits under a law administered by the Secretary
shall have the burden of submitting evidence sufficient to
justify a belief by a fair and impartial individual that the
claim is well grounded. The United States Court of Veterans
Appeals (Court) has held that a well-grounded claim is "a
plausible claim, one which is meritorious on its own or
capable of substantiation. Such a claim need not be
conclusive but only possible to satisfy the initial burden of
§ [5107(a)]." Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990).
The Court has also held that although a claim need not be
conclusive, the statute provides that it must be accompanied
by evidence that justifies a "belief by a fair and impartial
individual" that the claim is plausible. Tirpak v.
Derwinski, 2 Vet.App. 609, 610 (1992). The Court has held
that "where the determinative issue involves medical
causation or a medical diagnosis, competent medical evidence
to the effect that the claim is 'plausible' or 'possible' is
required." Grottveit v. Brown, 5 Vet.App. 91, 93 (1993)
(citing Murphy, at 81). The Court has also held that
"Congress specifically limits entitlement for service-
connected disease or injury to cases where such incidents
have resulted in a disability. In the absence of proof of a
present disability there can be no valid claim." Brammer v.
Brown, 3 Vet.App. 223, 225 (1992); see also
Rabideau v. Derwinski, 2 Vet.App. 141, 143-44 (1992).
In Caluza v. Brown, 7 Vet.App. 498, 506 (1995) the Court
reaffirmed these holdings, stating in order for a claim to be
well grounded there must be competent evidence of current
disability (a medical diagnosis), of incurrence or
aggravation of a disease or injury in service (lay or medical
evidence), and of a nexus between the inservice injury or
disease and the current disability (medical evidence).
In the present case, the many of the veteran’s service
medical records cannot be located despite repeated efforts by
the RO and the National Personnel Records Center (NPRC). The
evidence indicates these records were misplaced at the time
of the veteran’s separation from service in February 1990.
The veteran also indicated he did not have his service
medical records. Subsequently, service medical records dated
between 1980 and 1988 were received by the RO. In a May 1993
letter, the veteran’s representative noted that the veteran
“provided a set of original service records.” A July 1993
statement from the RO indicates these records consisted 125
pages. There still appears to be service medical records
that have not been located. Under such circumstances, the
Board is under a heightened obligation to explain its
findings and conclusions. O’Hare v. Derwinski, 1 Vet.App.
365 (1991).
Eye Disorder
The veteran seeks service connection for a chronic eye
disorder. The veteran argues that while doing the lawns in
preparation for an inspection, a blade of grass became
embedded in his eye. He maintains that chemicals used on the
grass caused an infection, which although treated at that
time, required eventual treatment with laser surgery.
According to the veteran, his eye has since formed a crater
which fills with calcium, requiring treatment in order to
remove the calcific deposits. In his August 1992 application
for compensation, he claims the injury was to his left eye
and was manifested by crater in 1982.
The available service medical records are negative for a
history of any injury to the left eye. A July 1988 report of
hospital admission includes a physical examination finding of
“an old pterygium in the right eye.” The veteran’s medical
history does not include a prior incident of any right eye
injury.
During a VA ophthalmology examination in October 1990, the
veteran related a history of conjunctival ulcer with
recurrent erosions and calcium buildup, status post surface
laser treatment in the right eye. Physical examination
showed a choroidal nevus and calcific conjunctival lesion of
the veteran’s right eye. The examiner stated that the
etiology of this right eye lesion is unclear. The veteran’s
visual acuity was reported as 20/30-2 and 20/30 without
reference to either eye. The VA examination report lists the
veteran’s corrected distant visual acuity as 20/10,
bilaterally.
Despite the history of a conjunctival ulcer with recurrent
erosions and calcium buildup, status post surface laser
treatment in the right eye, provided by the veteran during
the October 1990 VA examination, the medical examiner stated
that the etiology of this right eye lesion is unclear. The
examiner does not relate calcific conjunctival lesion of the
veteran’s right eye to laser surgery during service or any
other incident or event of service. The veteran is not
competent to relate that he underwent laser surgery during
active service for treatment of a conjunctival lesion. While
there are service medical records that are not available, the
available records show examination of the veteran’s eyes in
July 1988 and this failed to demonstrate a calcific
conjunctival lesion of the veteran’s right eye at that time.
The examiner also does not relate the choroidal nevus of the
right eye, or any other pathology to any incident or event of
active service. The examiner also does not relate that any
of the pathology shown during that examination results in an
eye disability. The VA examination does show a reduction in
uncorrected distant visual acuity; however, this is also not
attributed to active duty. Although the medical findings
do not specifically report a diagnosis of refractive error,
the regulations provide that congenital or developmental
defects, such as refractive error of the eye, are not
diseases or injuries within the meaning of applicable
legislation. 38 C.F.R. § 3.303(c) (1995).
In the absence of any competent evidence of incurrence in
service, or of a nexus between the veteran’s current eye
pathology and any incident or event of active service, the
Board concludes that the claim for service connection for a
chronic eye disorder is not well grounded. 38 U.S.C.A.
§5107(a).
Bilateral Defective Hearing
For the purpose of applying the laws administered by the VA,
impaired hearing is considered a disability when the auditory
threshold in any of the frequencies 500, 1,000, 2,000, 3,000,
or 4,000 Hertz is 40 decibels or greater; or when the
auditory threshold for at least three of the frequencies 500,
1,000, 2,000, 3,000, or 4,000 Hertz is 26 decibels or
greater; or when speech recognition scores using the Maryland
CNC Test are less than 94 percent. 38 C.F.R. § 3.385 (1995).
In the present case, the available service medical records do
not contain evidence of chronic defective hearing.
Hensley v. Brown, 5 Vet.App. 155 (1993). The available
service medical records show that examinations of the ears in
1981 and 1988 were negative. On VA audiometric examination
in October 1990, pure tone air conduction threshold levels
for the frequencies 500, 1,000, 2,000, 3,000, and 4,000 Hertz
in the veteran’s right ear were 10 decibels, 10 decibels,
15 decibels, 10 decibels, and 10 decibels, respectively, with
speech recognition of 96 percent. Pure tone air conduction
threshold levels for those same five frequencies in the
veteran’s left ear were 10 decibels, 5 decibels, 15 decibels,
25 decibels, and 35 decibels, respectively, with speech
recognition of 94 percent. The diagnoses were normal hearing
sensitivity on the right, mild high frequency sensorineural
hearing loss on the left and normal speech recognition
ability. Despite the diagnosis of mild high frequency
sensorineural loss of the left ear, the reported examination
findings demonstrate the veteran does not currently have a
hearing loss disability under 38 C.F.R. § 3.385. The Board
finds that the veteran has not submitted competent medical
evidence showing a current hearing loss disability within the
meaning of legislation governing the award of compensation
benefits. The Board concludes that the claim for service
connection for bilateral defective hearing is not well
grounded. 38 U.S.C.A. § 5107(a).
Increased Rating
The veteran’s claim for increased disability compensation is
well-grounded based on the service medical records and the
veteran’s statements of symptomatology. 38 U.S.C.A.
§ 5107(a); Proscelle v. Derwinski, 2 Vet.App. 629 (1992).
The claims folder contains all available service medical
records and the veteran has not alleged post-service VA
medical treatment. The veteran underwent VA compensation
examinations, and these reports are of record. The veteran
has not identified additional relevant evidence in support of
his claim that has not been obtained. The Board finds that
all indicated development has been completed, and the VA
has satisfied its duty to assist the veteran. 38 U.S.C.A.
§ 5107(a).
The veteran seeks an increased rating for the service-
connected disability at issue. Disability evaluations are
determined by the application of a schedule of ratings which
is based on the average impairment of earning capacity.
Separate diagnostic codes identify the various disabilities.
38 U.S.C.A. § 1155; 38 C.F.R. Part 4. The Board notes that
where an increase in a service-connected disability is at
issue, the present level of disability is of primary concern.
Although review of the recorded history of a service-
connected disability is important in making a more accurate
evaluation, see 38 C.F.R. § 4.2 (1995), the regulations do
not give past medical reports precedence over current
findings. Francisco v. Brown, 7 Vet.App. 55, 58 (1994).
The available service records disclose that, in March and
April 1981, the veteran was hospitalized at a service medical
facility, where he underwent a subtotal gastrectomy with
bilateral vagotomy, in conjunction with a Billroth I
anastomosis. On subsequent service hospitalization in July
1988, the veteran stood 5 feet 9 inches tall, and weighed
160 pounds. Further examination revealed a well-healed
surgical scar in the midline of the veteran’s abdomen.
On VA general medical examination in December 1990, the
veteran stated that he had been unable to gain weight since
his prior surgery. The veteran’s abdomen was soft and
nontender, and there was no evidence of any mass or
organomegaly. The veteran weighed 157 pounds at that time.
The examiner described the surgical scar of the abdomen as 15
centimeters in length and healed.
On VA gastrointestinal examination in September 1993, the
veteran reported a history of chronic ulcer disease, with a
partial gastrectomy in 1981. The veteran reported to the
examiner that his weight had been stable in the range from
150 to 160 pounds since the inservice surgery. He complained
of occasional gas, in conjunction with mild early satiety,
but the veteran stated he followed a gastric antidumping diet
and he had no diarrhea, abdominal pain, weight loss,
hematemesis, or melena. On physical examination, the
veteran’s abdomen displayed a midline scar. His liver and
spleen were negative, with no masses or tenderness. Physical
examination was similarly negative for the presence of either
rebound or rigidity. The veteran’s weight was 72 kilograms,
with a maximum weight in the past year of 75 kilograms. A
report of orthopedic examination performed at that time lists
his weight as 160 pounds. No history of anemia was noted and
the veteran denied vomiting. The diagnosis was history of
partial gastrectomy in 1981 for gastric ulcer, with “no new
symptoms.”
The Schedule for Rating Disabilities (Schedule) provides a 20
percent rating for mild post gastrectomy syndrome manifested
by infrequent episodes of epigastric distress with
characteristic mild circulatory symptoms, or continuous mild
manifestations. 38 C.F.R. § 4.114, Diagnostic Code 7308. In
every instance where the Schedule does not provide a zero
percent evaluation for a diagnostic code, a zero percent
evaluation shall be assigned when the requirements for a
compensable evaluation are not met. 38 C.F.R. § 4.31. The
Schedule provides that minor weight loss or greater losses of
weight for periods of brief duration are not considered of
importance in rating. Rather, weight loss becomes of
importance where there is appreciable loss which is sustained
over a period of time. The use of the term "inability to
gain weight" indicates that there has been a significant
weight loss with inability to regain it despite appropriate
therapy. 38 C.F.R. § 4.112 (1995). Finally, the Schedule
provides a 10 percent rating for a superficial scar which is
tender and painful on objective demonstration. 38 C.F.R.
§ 4.118, Diagnostic Code 7804.
The persuasive evidence in this case consists of the 1988
post-surgery service medical examination and the post-service
VA examination findings reported in 1990 and 1993. These
findings do not show the veteran’s surgical scar is tender
and painful. The July 1988 examination revealed a well-
healed surgical scar in the midline of the veteran’s abdomen.
The December 1990 report also describes the surgical scar of
the abdomen as 15 centimeters in length and healed. The
veteran also does not complain that the scar is tender and
painful. 38 C.F.R. § 4.118, Diagnostic Code 7804.
The veteran argues that his symptoms include an inability to
gain weight. The persuasive medical examination findings do
not show the veteran’s residual symptoms are manifested by
weight loss. The available service medical records show the
veteran weighed 157 pounds in 1980 prior to the surgery. The
July 1988 post-surgical findings show the veteran weighed
160 pounds at that time. In December 1990, the veteran
weighed 157 pounds. In September 1993, the veteran reported
to the examiner that his weight had been stable in the range
from 150 to 160 pounds since the inservice surgery, and the
evidence shows he weighed approximately 160 pounds at that
time. While the veteran complained of mild early satiety
there has been no evidence showing sustained weight loss
since prior to the inservice surgery.
The evidence also does not demonstrate infrequent episodes of
epigastric distress. In the substantive appeal, the veteran
stated that the surgery during active service was performed,
in part, to relieve the constant pain he was experiencing.
During the December 1990 examination, the veteran complained
of an inability to gain weight but not episodes of epigastric
distress. At the September 1993 examination, the veteran
denied abdominal pain. In addition, the veteran stated that
he has been following a gastric antidumping diet and has had
no diarrhea, weight loss, hematemesis, vomiting or melena.
Physical examination also showed no masses, tenderness,
rebound or rigidity. Based on that examination and the
veteran’s reported history, the physician’s diagnosis was
history of partial gastrectomy in 1981 for gastric ulcer,
with “no new symptoms.” In this case, the persuasive medical
evidence does not support a finding of infrequent episodes of
epigastric
distress with characteristic mild circulatory symptoms, or
continuous mild manifestations. 38 C.F.R. § 4.114,
Diagnostic Code 7308. While the veteran states he
experiences a quick digestive process after meals in his
substantive appeal, he did not report the same symptomatology
to the VA examiner. He also argues that a compensable rating
is warranted based on the uncertainty of future
complications; however, the Schedule is designed to
compensate for the present level of disability and not future
complications that may occur.
For these reasons, the Board finds that the persuasive
evidence demonstrates that the service-connected
postoperative gastrectomy is essentially asymptomatic and is
currently less than mild in severity, with less than
infrequent episodes of epigastric distress and characteristic
mild circulatory symptoms, or continuous mild manifestations;
the post-operative scar is superficial and not tender and
painful on objective demonstration. The Board finds the
evidence is not evenly balanced and does not more nearly
approximate the criteria for a compensable rating.
Therefore, the Board concludes that the criteria for a
compensable rating for the postoperative residuals of a
gastrectomy, including a scar, is not warranted. 38 U.S.C.A.
§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.31, 4.112, 4.114,
4.118, Diagnostic Codes 7308, 7804.
ORDER
Service connection for an eye disorder, including refractive
error, and a recurrent conjunctival ulcer of the right eye,
is denied.
Service connection for bilateral defective hearing is denied.
A compensable rating for postoperative residuals of a
gastrectomy, including a scar, is denied.
R. E. COPPOLA
Acting Member, Board of Veterans' Appeals
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, 741
(1994), permits a proceeding instituted before the Board to
be assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991, amended by Supp. 1995), a decision of the Board of
Veterans' Appeals granting less than the complete benefit, or
benefits, sought on appeal is appealable to the United States
Court of Veterans Appeals within 120 days from the date of
mailing of notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
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